CHIEF JUSTICE TOAL: In this post-conviction relief (PCR) case, we granted a writ of certiorari to provide Sammyeil B. Barber, , the criminal defendant, with a belated appeal pursuant to White
v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).[1] The
direct appeal concerns the circuit court judge's jury charge on accomplice
liability. Sammyeil B. Barber, the criminal defendant, argues the charge was
improper because it was unsupported by the evidence presented at trial. We
agree with the State that the charge was properly supported by the evidence
presented at trial.

FACTS/PROCEDURAL BACKGROUND

The State alleged Barber and
three others (Blake Kimbrell, Kenneth Walker, and Marcus Kiser) conspired to
rob a minor drug dealer, Alan Heintz. The men gathered together and discussed
the plans for the robbery, procured a semi-automatic handgun, and then drove to
Heintz's house. Upon discovering more people than expected at the house, they
left to procure a second firearm, a rifle. The men returned to Heintz's house
and Kimbrell waited in the car while Barber, Walker, and Kiser went in to rob
Heintz.

After entering the house and
waking the occupants, the men demanded money and drugs. Heintz was dragged
from the bedroom and ultimately drew a shotgun on the robbers. One of the
suspects armed with a semi-automatic handgun shot and killed Heintz, and shot
and wounded another man who was sleeping on the couch. The three men fled the
premises, stealing only $30 and leaving their rifle behind.

Eventually, police located
the four men in connection with the crime. Kimbrell, Walker, and Kiser all implicated
Barber in the planning and execution of the robbery, and said he was the gunman
who shot Heintz. They pled guilty and testified against Barber, each receiving
15-30 years. At Barber's trial, Kimbrell, Walker, and Kiser all testified
Barber was armed with the semi-automatic handgun and had shot both victims.
The State presented testimony that only two weapons were brought to the
robbery—the semi-automatic handgun allegedly carried by Barber, who was
described as the robber of middle height, and a rifle, carried by Kiser, the
shortest. Barber did not testify at trial, but his defense counsel elicited
testimony on cross-examination that Walker, the tallest of the three men and
the first to enter the house, was also in possession of a semi-automatic
handgun. Barber primarily asserted in his defense that he did not participate
in the crime and that the other three men lied to the police, framing him for
the murder, to obtain lessened sentences. Barber claimed Walker was the
gunman.

The circuit court judge instructed
the jury on accomplice liability over defense counsel's objection. Defense
counsel argued the charge was improper because the evidence presented at trial
did not support the charge, the State did not base its prosecution on a theory
of accomplice liability, and the indictment alleged Barber was the gunman. The
judge noted the objection and stated on the record:

. . . I
think that the charge is correct in this case. Even if the intimation of the
defense that these persons are basically conspiring to make [Barber] the
shooter, if [the jury] believe[s] that, but they also believe he was present,
someone else did the shooting, but they're not sure who did the shooting, but
it was done when all four were present, there with that intended purpose of
robbery, he would still be liable under the theory of the hand of one is the
hand of all in the case or accomplice liability, whatever you want to call it.

The jury deliberated for
nearly three hours, then asked for an explanation of "the hand of one, the
hand of all" charge and to what charges that rule applied. After
receiving that instruction again, the jury deliberated further before returning
with guilty verdicts on all charges: criminal conspiracy, possession of a
pistol by a person under twenty-one, possession of a firearm during the
commission of a violent crime, attempted armed robbery, armed robbery, first
degree burglary, assault and battery with the intent to kill, and murder.

ISSUE

Did the circuit court judge
err in charging the jury on accomplice liability?

STANDARD OF REVIEW

The trial court is required
to charge only the current and correct law of South Carolina. Sheppard v.
State, 357 S.C. 646, 665, 594 S.E.2d 462, 472 (2004). "The law to be
charged must be determined from the evidence presented at trial." State
v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). "In
reviewing jury charges for error, we must consider the court's jury charge as a
whole in light of the evidence and issues presented at trial." State
v. Mattison, 388 S.C. 469, 478-79, 697 S.E.2d 578, 583 (2010).

ANALYSIS

Barber argues the evidence
presented at trial did not support a jury charge on accomplice liability as to
the murder charge. We disagree.

In State v. Funchess,
276 S.C. 427, 229 S.E.2d 331 (1976), and other cases, this Court has held that
a lesser-included offense may not be charged merely on the theory the jury may
believe some of the evidence and disbelieve other evidence. Barber relies upon
this reasoning to support his argument that similar speculation is insufficient
to warrant a jury charge on an alternate theory of liability. Barber's
proposition is correct. Like a lesser-included offense, an alternate theory of
liability may only be charged when the evidence is equivocal on some integral
fact and the jury has been presented with evidence upon which it could rely to
find the existence or nonexistence of that fact. We find the sum of the
evidence presented at trial, both by the State and defense, was equivocal as to
who was the shooter. Thus, the charge on accomplice liability was warranted.

"Under the 'hand of one
is the hand of all' theory, one who joins with another to accomplish an illegal
purpose is liable criminally for everything done by his confederate incidental
to the execution of the common design and purpose." Mattison, 388
S.C. at 479, 697 S.E.2d at 584. To support an accomplice liability charge in
this case, the question is whether there is any evidence that another
co-conspirator was the shooter and Barber was acting with him when the robbery
took place. See State v. Dickman, 341 S.C. 293, 295-96, 534 S.E.2d 286,
269 (2000).

We find evidence to support
the conclusion that Barber was acting with the other men during the robbery.
Because all of the men clothed themselves all in black and wrapped shirts
around their heads so only their eyes were visible, the witnesses could only
describe and differentiate the men based on physical build, height, and the
weapon carried. Kimbrell, Kiser, and Walker, however, all testified to
substantially the same version of the planning and execution of the
robbery—that Barber was involved and was the shooter.

The evidence presented at
trial could also support a finding that one of the other robbers was the
shooter. The State presented evidence that Kiser was the shortest of the three
men and carried the rifle, Barber was of middle height and carried a
semi-automatic handgun, and Walker was the tallest and carried no weapon.
However, defense counsel elicited testimony that all three robbers were
armed—one with a rifle and two with .380 handguns, the type weapon forensic
experts testified fired all the shots in Heintz's home that evening. Defense
counsel's cross of Coleman Robinson, the witness who had been sleeping on the
couch when the robbery began, indicates all three men were armed:

Q: [quoting from Mr. Robinson's statement to the
police days after the incident] After the door was open, first they pushed it
wide and hit the wall. As soon as that happened, that person turned the lights
on.

A: Yes.

Q: Without having to look for the switch. I just
laid on the couch until this same person walked up to me and I noticed he was
holding a gun in his left hand.

A: Yes.

Q: And
that's the truth?

A: Yes.

. . .

Q: All right. And then later on you talk about
the second guy. The second guy was a little shorter and looked younger. He
was carrying a rifle.

A: Yes,
sir.

. . .

Q: Then you say the third guy was taller, about
six feet, 160. He had a bunched up T-shirt around his head, too. He looked to
be in his early twenties. He was carrying a pistol also.

A: Yes.

Kyle Robinson, Coleman's
brother who was asleep in a bedroom when the robbery began, also testified that
the tallest of the three, which would be Walker, was armed:

A: [On direct examination] Well, as I went to
the [bedroom] door to see what was going on, my door was like halfway shut, so
I looked through the little space and that's when I saw the guy go back there
to Alan's room and he had a black pistol in his hand.[2]

. . .

A: And then by that time I kind of opened the
door and I looked and I saw the gun at Coleman's head, my brother, and I saw
him give his wallet up . . . .

. .
.

Q: Were you able to tell anything about the other
two as far as size goes?

A: I remember seeing the guy that went in the
back. He seemed to be the biggest of all of them.

Q: Okay.
When you say big—

A: You
know, tall. Just the tallest of all of them.

. .
.

Q: [On cross-examination] And you saw a black
guy holding a small semi-automatic handgun to [your] brother's head; is that
right?

A: Right.

Q: He was a black guy about six feet tall,
weighing 150 to 160; is that right?

A: That's what I said, but I was actually kind of
wrong about that.

Q: So when you made this statement on the 15th,
the day after it happened, you said he was six feet tall?

A: That's what he appeared to be, but the other
guy was bigger.

. . .

Q: There was a shorter black guy pointing a rifle
at [you]?

A: Yeah.

Q: And a third black guy went to the other
bedroom and pulled Alan out. He was about six feet tall and weighed 180
pounds, and today you said he had a gun also?

A: Yes.

Further, defense counsel
outright argued that Walker was armed with a .380, the type of gun that fired
the shots at Heintz's house, suggesting that Walker was the shooter. Thus, the
testimony offered at trial indicating there may have been two robbers armed with
handguns is sufficient to warrant the jury charge.

CONCLUSION

Therefore, the testimony is
equivocal as to whether or not Barber was the only person armed with the type
of gun the forensic experts say fired all the shots that night. The circuit
court judge did not err in instructing the jury on "the hand of one, the
hand of all" theory of accomplice liability. Accordingly, the convictions
and sentences are

AFFIRMED.

PLEICONES, BEATTY,
KITTREDGE and HEARN, JJ., concur.

[1] We also granted the State's petition for a writ of certiorari. Because we find
there is probative evidence to support the PCR judge's determination that
Barber was denied his right to a direct appeal, we dismiss that writ of
certiorari as improvidently granted.

[2] All the witnesses at trial, through their testimony, corroborated that the
tallest of the three robbers went into the bedroom to retrieve Heintz. Walker
is the tallest of the three men, and he and Kiser testified that Walker went to
get Heintz.